Zarthar v. Saliba

• Citation: 185 N.E. 367,282 Mass. 558
• Parties: ZARTHAR v. SALIBA. SALIBA v. ZARTHAR.
• Decision Date: 04 April 1933
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 558

185 N.E. 367

ZARTHAR

v.SALIBA.

SALIBA

v.ZARTHAR.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1933.

Exceptions from Superior Court, Suffolk County; Weed, Judge.

Action by Saia F. Zarthar against Simon Saliba and by Simon Saliba against Saia F. Zarthar. Decisions were rendered adverse to Saia F. Zarthar, and he brings exceptions.

Exceptions overruled.

E. F. Shamon, of Boston, for Zarthar.

F. T. Conley, of Boston, for Saliba.

LUMMUS, Justice.

By a written contract dated August 16, 1929, Simon Saliba agreed to build a house for Saia F. Zarthar according to certain plans and specifications for $11,000. An auditor whose findings of fact are final found that ‘after the written contract had been executed the parties mutually orally agreed that the house should be constructed as Zarthar should direct, that in the absence of specific direction the plans and specifications should govern, that Saliba should be paid the reasonable and fair value of the labor and materials involved in any changes ordered by Zarthar, and that Zartharshould be given the benefit of any saving in expense occasioned by changes so ordered or rendered necessary by conditions.’ The auditor improperly burdened his report by attaching requests for findings of fact presented by the parties. Such requests have no importance after the report has been drafted, except possibly as the basis of a motion, addressed to the discretion of the judge, to recommit the report. They ought not to be incorporated in in report or attached to it. Manfredi v. O'Brien (Mass.) 185 N. E. 365.

The provision of the written contract that ‘no charge for extra work will be honored and paid unless the owner shall order same by a writing directed to the contractor stating the nature of the work to be performed and the sum to be paid therefor’ obviously could not prevent oral contracts for extra work, for the parties had power to waive or alter that provision orally at any time. Vitti v. Garabedian, 264 Mass. 1, 161 N. E. 607;Lynch v. Culhane, 241 Mass. 219, 221, 135 N. E. 119;Fall River Oil Heating Co., Inc., v. Gildard, 265 Mass. 513, 164 N. E. 382.

On the theory that the written contract as orally modified governs the rights of the parties, the auditor found that Saliba is entitled to recover in his actions of contract, an amount composed of the contract price less a deduction for work included in the contract but not performed (Walsh v. Cornwell, 272 Mass. 555, 172 N. E. 855;Glazer v. Schwartz, 276 Mass. 54, 57, 176 N. E. 613), plus compensation for extra work. Although the written contract provided for the completion of the work on January 9, 1930, and the work was not finished until March 1, 1930, the auditor denied Zarthar damages for the delay because it was occasioned by changes in construction which he ordered. In the suit against him, Zarthar received full credit for Saliba's failure to perform the contract as modified, and for that reason a finding for the defendant was rightly made in Zarthar's action against Saliba for breach of contract. Learned v. Hamburger, 245 Mass. 461, 473, 139 N. E. 641. Compare Mark v. Stuart-Howland Co., 226 Mass. 35, 43, 115 N. E. 42, 2 A. L. R. 678. The judge ordered judgment in favor of Saliba in each case in accordancewith the auditor's report, and Zarthar alleged exceptions.

The trial judge ruled correctly that Saliba could not recover on his first count, which was based on the written contract as orally modified, for the reason that he had not fully performed it. Allen v. Burns, 201 Mass. 74, 87 N. E. 194;Searls v. Loring, 275 Mass. 403, 406, 407, 176 N. E. 212. The fact that Zarthar took possession on March 1, 1930, did not affect his legal rights resulting from the failure of Saliba fully to perform. Barton v. Morin, 281 Mass. 98, 183 N. E. 170;Douglas v. City of Lowell, 194 Mass. 268, 274, 275, 80 N. E. 510. Saliba was permitted to recover, however, upon the second count, which was on an account annexed for labor and materials.

Zarthar contends that Saliba was guilty of intentional failure to perform the contract as orally modified, and consequently cannot recover under the second count for substantial though inexact performance within the rule of Hayward v. Leonard, 7 Pick. 181,19 Am. Dec. 268, and the many decisions following that case....